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2021 Supreme(Mad) 2131
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Priya – Appellant
Versus
The State rep.by the Inspector of Police, Ariyalur Police Station, Ariyalur – Respondent
Crl.A. No. 205 of 2015
Decided on : 04-10-2021
Advocate Appeared:
For the Appellant :V. Illanchezian, Advocate.
For the Respondent:R. Vinoth Raja, Government Advocate.
Headnote:
Criminal Procedure Code, 1973 - Section 374(ii), (i), 506(i) and 161 – Indian Penal Code, 1860 - Section 304(ii), 302, 201 – Murder Offence – Drown in Well - Appeal Against Conviction - A1 and defacto complainant are neighbors - Defacto complainant was unwell and in order to go to hospital she left her son in custody of A1 and her mother - Mother of A1 left child in custody of A1 - While boy cried continuously, A1 slapped on cheek of boy with her hand and then child dashed against wall and become unconscious - Then, A1 took boy Balaji and picked rope with Gold Thayathu and throw rope with Thayathu into a forest area and thrown boy into well – Held, Evidence of P.W.14/Doctor who had conducted autopsy of deceased gave opinion that child was drown in water and cause of death was asphyxia on drinking water and hence, when medical evidence is not suggestive of violence having committed on deceased - In absence of any positive evidence to show that appellant/first accused bet child and subsequently, throw him in well has not been proved - By operation of law, benefit of doubt goes to appellant/first accused and prosecution has miserably failed to prove circumstantial theory of case as required and hence, evidence of P.W.1, P.W.2 and P.W.4 are held to be unreliable and cannot be lead to in absence of any probable chain between witnesses version which is also found to be contracted with evidence of investigation officer - Appeal allowed.
JUDGMENT :
(Prayer: Criminal Appeal is filed under Section 374(ii) of Criminal Procedure Code, to set aside the judgment and sentence passed in S.C.No.23/2014 dated 19.03.2015 on the file of the Principal District and Sessions Judge, Ariyalur, convicting the appellant for the offence under Section 304(ii) of IPC and sentenced to undergo five years imprisonment and imposed a fine of Rs.1,000/- in default to undergo one year imprisonment.)
1. The matter is heard through “Video Conference”.
2. Convicted first accused is the appellant herein.
3. The criminal appeal is filed against the judgment passed in S.C.No.23/2014 dated 19.03.2015 on the file of the Principal District and Sessions Judge, Ariyalur, convicting the appellant for the offence under Section 304(ii) of IPC and sentenced to undergo five years imprisonment and imposed a fine of Rs.1,000/- in default to undergo one year imprisonment.
4. The respondent-police filed final report against A1 and A2 alleging that A1 and defacto complainant are neighbors. The child of defacto complainant frequently went to the house of A1 and played in her house. At that time, A1 used to scold the boy. On 16.09.2013, the defacto complainant was unwell and in order to go to hospital she left her son Balaji in the custody of A1 and her mother Vijayalakshmi at 1.00 p.m. The mother of A1 left the child Balaji in the custody of A1. While the boy Balaji cried continuously, A1/Priya slapped on the cheek of the boy Balaji with her hand and then the child dashed against the wall and become unconscious. Then, A1 took the boy Balaji and picked the rope with Gold Thayathu and throw the rope with Thayathu into a forest area and thrown the boy into the well of Chettinadu Cement Company. She throw the boy into the well with the intention of murdering him. A2 threatened witness No.2. Hence, the respondent-police laid the charge sheet under Section 302, 201 and 506(i) as against A1 and A2.
5. During trial, on the prosecution side P.W.1 to P.W.17 were examined and Exs.P1 to P19 have been marked. Further, one material object was marked.
6. Based upon the oral and documentary evidence, the learned Principal District & Sessions Judge, Ariyalur, had acquitted A2 and convicted A1 as stated supra.
7. Heard the learned counsel for the appellant and the learned Government Advocate for the respondent.
8. The learned counsel for the appellant would contend that A) none of the circumstances projected by the prosecution has been established. B) The prosecution version of the cases suffer from inherent infirmities.
9. Per contra, the learned Government Advocate would contend that two witnesses have spoken about to of having seen A1 beating the child and the Doctor who performed autopsy on the dead body could not ruled out homicidal violence having been committed on the child. Further, he made submission in support of the order passed by the learned Sessions Judge.
10. P.W.1 is the mother of the deceased (2 1/2 year old child). P.W.2, who was grazing the cattle near to scene of the crime viz., well, turned hostile. P.W.3 and P.W.4 are projected as if, P.W.2 was telling P.W.1 about the certain alleged act of the accused, on the body of the child. P.W.5 is the father of P.W.1 while P.W.4 and P.W.6 who had lifted the dead body of the child from the well. The attestor of observation mahazar and seizure mahazar were examined as P.W.7 to P.W.9. The attestor of the arrest and recovery were examined as P.W.10 and P.W.11. Others, P.W.12 to P.W.14 are revenue and police witnesses. P.W.14/Dr.Ramesh, who had conducted postmortem and issued Ex.P10. P.W.14/Ramesh, is now working as Assistant Medical Officer in Ariyalur Government Hospital. On 17.09.2013, while he was on duty, he received the body of the deceased for postmortem. He found the following injuries:-
1. A Bluish contusion of size about 3x3cm over centre of forehead seen.
2. An abrasion of size about 5x4cms with scab is seen over the left side of upper back.
3. Chest-ribs intact, lungs are
